Be Careful About What You Agree to in Your Property Settlement Agreement: Everett v. Everett

When ending your marriage, you may enter into a property settlement agreement
with your former spouse. This agreement will deal with issues of separating
personal and marital assets, as well as child custody, child support and
alimony. You must be extremely careful about what you agree to in this
agreement, as the Virginia case of
Everett v. Everett demonstrates.

In the
Everett case, the divorcing couple entered into a property settlement agreement
that contained the following stipulations:

“In recognition of the Children’s living expenses, including two private
school tuitions, summer camps, work-related child care, transportation,
insurances, in addition to food, clothing and housing, Husband agrees
to pay Wife the sum of Five Thousand and 00/100 ($5,000) per month as
and for child support commencing July 1, 2004, and continuing until each
child graduates from college . . .”

“In the event that Husband ever seeks a downward adjustment in his child
support obligations, Wife shall be entitled to pursue her marital share
of Husband’s business interests and to pursue spousal support, both
of which were waived to obtain child support beyond Virginia’s guidelines.”

The agreement also contained language that provided both parties would
equally share the costs of their children’s undergraduate educations,
which included tuition as well as housing. Moreover, the former couple
agreed that if the husband ever sought to decrease his child support payment,
he would have to pay for the former wife’s costs and attorney fees
for answering the petition to modify support.

Of course, once the oldest child went to college, the former wife’s
income increased and the youngest child received a scholarship for private
school – so the former husband filed a motion to decrease the amount
he had to pay in child support. And, you guessed it, the former wife answered
with the property settlement agreement, highlighting the above provisions.
Accordingly, the trial court ruled that the husband was obligated to pay
the $5,000/month in child support until his youngest child graduated from
college. Dissatisfied with this conclusion, the former husband appealed.

On appeal, the Virginia Court of Appeals made a number of conclusions.
First, the Court stated that because the agreement required the former
husband to pay child support to his oldest child through college graduation,
even though the child was over the age of 18, this portion of the husband’s
support obligation could not be modified because the settlement agreement
contained no language permitting a modification in the future. Under Virginia
law, a court is without power to award child support to a child over the
age of 18, absent an agreement of the child’s parents. And, if such
an agreement exists, the support obligation can only be modified if the
agreement explicitly allows for it.

Second, the court determined that the husband’s support obligation
with regard to the youngest (minor) child
could be modified, because the court always has jurisdiction to change, modify
and/or enforce its own order concerning the support and custody of minor
children. The Court also decided that the $5,000 the former husband owed
each moth could be apportioned amongst both children, because the settlement
agreement did not specifically prohibit it, in fact, it contemplated that
a modification may be sought in the future (albeit at the expense of the
former husband).

The appellate court sent the case back to the trial court for a determination
of how much support should be allocated to the youngest child, if this
support obligation should be modified and if so, how much the former husband’s
new payment should be. The Court also awarded the former wife her attorney’s
fees for defending the petition in the trial court, as well as on appeal.

This case illustrates why it is so important to carefully draft your property
settlement agreement and fully understand each and every provision. Here,
the former husband could never modify his support obligation towards the
oldest child, had to pay all of his former wife’s attorney’s
fees, and faced the likely prospect of having to give her an equitable
share of his business interest as well as alimony.

If you are in the process of drafting a marital or property settlement
agreement, would like to enforce or modify an existing one, you need the
help of a qualified family law and divorce attorney. Your lawyer can help
develop provisions that protect your interests and attain the results
you desire. The family lawyers of the DiPietro Family Law Group have decades
of experience with all family law issues in jurisdictions across Northern
Virginia, Maryland and Washington, DC.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.

x

⚠

Your browser is out of date. To get the full experience of this website,
please update to most recent version.